The world we live and work in changed drastically on Sept. 11, 2001, and we must all adapt to these changes. In construction, engineers must recognize their increased obligation to design and construct buildings which utilize and incorporate appropriate design and technology to minimize the effects of potential terrorist attacks.
Before Sept. 11, 2001, security in design was not an overriding concern to architects, engineers, or builders. Today, security has become an absolute priority in almost every type of construction. Virtually overnight, good practices mandate that appropriate security safeguards and technology be incorporated into the design-build process at the project's initial planning stage.
The fundamental issue facing engineers is determining what design/security elements are appropriate for specific project types. The initial issue to confront is what level of security is sufficient to protect the tenants, the public, the owners, and the design-builders themselves. The answer requires a balancing act to determine the appropriate standard of care that will measure the engineer's actions on a project.
The engineer's conduct must not fall below the accepted “standard of care.” If it does, such action constitutes negligence, and liability results if someone or something is damaged. Determining whether the conduct is below the standard of care, and thus negligent, relates to foreseeability, or could harm or injury have been foreseen.
Determining risk
Finding the appropriate standard of care can be difficult. The engineer must balance and measure the risk of the accident occurring, versus the magnitude of the harm should the risk materialize, versus the availability of alternatives that would prevent the accident.
The first prong concerns foreseeing the harm. The second prong focuses on whether the harm will be material or not. The fact that an accident is foreseeable is of minor consequence if the resulting harm is trivial. The third prong relates to whether the accident could have been avoided using economical and available alternatives.
Implicit in the standard of care is a “rule of reason” to be used in assessing the level of security and technology of a design. For example, building a high-rise residential or commercial office building in Midtown Manhattan next to a politically sensitive consulate would require rigorously implementing existing security technology and design in construction. But building a commercial office building in the suburbs would involve less need for technological innovation and design because the terrorist threat will be less.
Engineers must note that the standard of care is kinetic and continually evolving. Events and technology affect and change the standard of care. Technological changes in the last 20 years have mandated revisions to building construction and safety. Because a building code in a particular municipality has not yet been amended to include new safety features or technological advances, does not by itself provide a safe haven from liability for damages incurred by a terrorist attack.
To the extent that an engineer fails to take steps to determine the appropriate standard of care, such an exercise will be undertaken in court by using experts to determine if a design-builder's actions were appropriate and in compliance with the standard of care.
For example, New York City is the only major city in the United States that has enacted changes to its building code which incorporates the lessons learned from the 9/11 attack. In the absence of a statutory requirement through a building code, an engineer must investigate and determine the appropriate standard of care for incorporating security and safety features in new and renovated buildings.
